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Who cares about the facts?

Officials do not usually record facts of which they are ashamed. That is why competitors for the truth about colonial politics and Aboriginal history—Reynolds, Ryan, Windschuttle or Manne—have had to swim for the moral high ground through a swamp of unknowing. We will never know as a fact how many Tasmanian Aborigines were slaughtered by settlers or the secrets and whispering in the hearts of the dead.

Courts are not much good at finding and addressing old wrongs. Until the late 20th century the terra nullius principle rebutted the suggestion that Aborigines had been dispossessed. The High Court’s blazing demolition of that principle in Mabo has since been smothered by a legislative blanket that has also dimmed the light of human rights and public respect for alternative dispute resolution and specialist tribunals. Aboriginal survivors of the ‘stolen generations’ have not been able to prove their right to damages in civil courts under ‘white man’s justice’. How can you prove an official policy, passing from one government to another, to remove Aboriginal children from their culture, when the witnesses are dead and the memories are 50 years old? And that the dusty, incomplete files show that custodians consented to the removal of particular children?

What if it could be proved that Aboriginal children were taken illegally under the laws of the time; detained by force and deception without lawful authority; and their parents and kin were unlawfully deprived of their children? What if there were credible evidence that this was knowingly done to countless children and their families, because it was thought that it was morally acceptable to break the law?

So long as there is argument about the facts, we can dither about the relative merits of a justice or welfare response to the misery of Aboriginal and Torres Strait Islander people. ‘Practical reconciliation’ assumes it is proper to address the needs rather than the rights of Indigenous children and their families. But if cultural dispossession, murder and the removal of those children did happen, then striving only for better health, education, living and housing standards, while necessary, seems an ethically inadequate aim. A just Australia for the survivors and their children requires more than the response of Western Australia to the shattering 2002 report of the Gordon Inquiry into the abuse of Aboriginal children in their communities today: a cluster of ‘multi-function’ police stations in remote areas.

There isn’t much of a market for Aboriginal people’s memoirs, but I’ve just read an unpublished manuscript by Rene Powell and Bernadette Kennedy with an unusually thorough and thoughtful review of the law. The story is not uncommon: a life spoiled by the removal and institutionalisation of a four-year-old Aboriginal girl from Warburton Ranges in Western Australia. When she next met her mother, 17 years later, they shared no language. She wandered away. Decades later she started looking for her ‘file’ and a reason for her sadness, and recently she has gone back to her country.

The WA Aborigines Act 1905 originally defined a ‘native’ in terms of descent, physical characteristics and lifestyle. The Chief Protector (later the Commissioner) was made guardian of any native child. The Minister could, by warrant, direct any native to be removed to, or between reserves, districts, institutions or hospitals ‘and kept therein’ without  judicial or other review.

In 1936 the Act was amended to define a ‘native’ in terms of ‘caste’, so clumsily that a quadroon, or ‘quarter-caste’, who was born before 31 December 1936 was not a ‘native’ unless they applied to be brought under the Act and the Minister consented. This resulted in an anomaly. Anyone of less than ‘quarter-caste’ was a ‘native’ and subject to the Commissioner’s and Minister’s powers, but a quarter-caste or quadroon was not.

Institutions where ‘natives’ could be kept were subject to gazette. One of those gazetted in 1937 was Sister Kate’s Home (in Perth), where light-skinned children were taken to be educated and trained to ‘pass for white’ and be absorbed into the mainstream community.

On 26 April 1948 the Acting Commissioner for Native Affairs, Mr McBeath, asked the Crown for a legal opinion about his right in law to refuse to release ‘light hued’ but quarter-caste Aboriginal children who had been transferred to Sister Kate’s Home without their mothers’ consent. He was aware that they were not ‘native’ children under the Act. The Crown Prosecutor advised that he had no right at all to detain children who were not ‘natives in law’ within the 1936 definition, even if their parents were. The definition of ‘native’ remained unchanged for ten more years despite significant other statutory amendments, eventuating in the Native Welfare Act of 1954.

Acting Commissioner McBeath felt he should have such a power and noted he intended to have the Act amended. He brought the anomaly to the attention of then Minister for Native Affairs, the Hon Ross McDonald qc, in a June 1948 memo in which he identified both Sister Kate’s Home and the Convent and Holy Child Orphanage at Broome as places where such children were being unlawfully detained. He also acknowledged that he did not have the power to reclaim a child who was not a ‘native’ if a parent removed them. He did not say whether he had instructed the institutions either to release such children or inform parents of their entitlements.

 The Minister acknowledged and initialled the Commissioner’s advice and asked for a copy for his own records.

Why then was nothing done? Minister McDonald was also a qc and Attorney-General. By November 1950 the Commissioner was writing to another Minister in an advice, set out below, which the Minister personally referred to his Premier. In this memo the Commissioner reveals the real policy underlying the application of the Native Administration Act provisions to the removal of Aboriginal children:

It is, in my opinion, questionable if the use of the Ministerial warrant is permissible in the case of children being removed to a Settlement or Mission in the interests solely of their physical and spiritual welfare, education and training. Fortunately it has never yet been challenged, but native parents are rapidly becoming more enlightened on the matter of what may be their just and lawful rights within a white community and it would not surprise me if the Department was called upon soon to defend its action by the issue of a Writ of Habeas Corpus before a Court of Law. Such legal action would, I think, have quite a reasonable chance of success. [Emphasis added] … [T]he Department would be placed in an embarrassing position by the mere fact of its administrative act, however well-intentioned, being challenged by the very people whose welfare and protection represents its most important function.

In the same memorandum the Commissioner records that certain country Justices of the Peace had ‘already quite illegally committed children and natives’ directly to certain native institutions, and the need for ensuring that such illegally removed children be brought before a Children’s Court. Perhaps he assumed that a Children’s Court order could retrospectively validate unlawful removals and detention. It could not. The Commissioner proposed that the ‘native institutions’ be designated child welfare institutions too, to empower authorities to deal with the children (and their maintenance needs) under child welfare laws. There could hardly be a clearer admission.

On 18 November 1954 Hansard records the Hon H.C. Strickland telling the WA Parliament that in about 1950 Minister McDonald had indicated that his statutory warrant should not be used because of its potential to authorise indeterminate civil detention. The Minister had also directed that ‘native’ children should be removed from their parents only through the Children’s Court. The ‘warrant’ provision had been repealed in 1954. However Mr McDonald’s instructions were apparently not effective. In a 1958 memorandum to the Commissioner about suggested amendments to the Child Welfare Act (i.e. eight years after the Minister had been told about the anomalous definition of ‘native’ and had directed no further arbitrary and unappealable apprehensions) he was advised that child protection proceedings had been and were still being ‘initiated and carried through’ by native welfare officers in the purported exercise of child protection powers that only child welfare officers possessed. If so, then these children, too, were unlawfully apprehended and detained.

The Commissioner referred that advice and its proposal, which he said he supported
—that child welfare authorities ‘make available if possible any desired statutory authorities under the Child Welfare Act’ to his officers—to the head of that department.

To cure such a litany of serious procedural defects one might expect authorities to have reviewed the apprehension, detention and circumstances of all Aboriginal children and to ensure that any anomaly be brought to their parents’ attention. This did not occur. Commissioner Middleton directed his officers to ‘encourage’ parents to sign ‘voluntary agreements’ for the admission of their children to missions to be educated, which were later claimed to empower these institutions to refuse to return the children. In 1955 he had acknowledged that these ‘agreements’ were not enforceable and authorised ‘consent’ forms in their place. No ‘consent’ can deprive a parent of his or her natural guardianship rights and obligations, either, especially if they were coerced through threats of forcible removal.

In 1958 the Acting Commissioner advised that when it came to the discharge of children from missions, ‘The laws should be used as a broad guide for procedure, but in our work the most important factor is what is in the best welfare interests of the native or natives concerned’.

The pattern is clear enough. From 1 January 1937 it would seem that a kind of benevolent inertia continued to drive a native welfare bulldozer over the civil and human rights of uncountable (because uncounted) Western Australian Aboriginal children and their parents. Their removal, transfer and detention without hearing or right of review was, to the knowledge of the Crown Law Department, the Commissioner for Native Affairs, the Minister for Native Affairs, the Attorney-General and the Premier, against the law. Parents of Aboriginal children were misled about their legal entitlements and remedies, if not always by actual misrepresentation then through official silence.

The final hypocrisy of inducing ‘agreements’ and ‘consents’ from parents with enforceable legal rights—but who had been accustomed to complete powerlessness —by government officers who were aware that these accords were unenforceable, is overwhelming.

This is a small spotlight upon the fragility of the rule of law in our times. Between 1 January 1937 until about 1960 government officers broke laws meant to protect Aboriginal people, severed the bond between parents and children without a proper process and sometimes with neither right nor need to do so. In so doing, they flouted the absolute human right not to be subject to arbitrary arrest and detention, and failed to rectify grave wrongs when they became aware of them, persuaded that this was in the best interests of those for whom they were responsible.

What should be done? Perhaps a group of interested Aboriginal people should ask the Western Australian Supreme Court for a declaratory judgment. The Attorney-General should be asked to consent to the application being lodged so many years outside the limitation period, in the public interest. It must be in the public interest to know what else is to be found of the motivations and acts of ministers, cabinet and governor in council beyond what was found in overlooked ‘administration’ files. Was there a removal policy based on ‘race’? Were children removed and detained illegally? If so, did government authorities know? How far up did that knowledge go? Was any person under a duty to put it right? If so, what should they have done? What, if anything, did they do?

A clear finding by one state’s Supreme Court might soften our impatient political ethos. Sir Ronald Wilson, President of the Human Rights and Equal Opportunity Commission when it conducted the Bringing Them Home inquiry, and the subsequent report, have both been nastily dismissed as sentimental and foolish.

How harshly we judge those whose inadequate parenting, confidence and life skills are causally linked to what may at last be a provable fact: that successive Western Australian governments did have a removal policy; that the law was repeatedly and knowingly broken; that it was a ‘pragmatic’ but immensely discriminatory approach; and that the same forces are still denying it today. 

Moira Rayner is a barrister and writer.



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